Harrigan v. Town of Smithtown
| Decision Date | 09 October 1967 |
| Citation | 283 N.Y.S.2d 424,54 Misc.2d 793 |
| Court | New York Supreme Court |
| Parties | Ethel S. HARRIGAN et al., Plaintiffs, v. TOWN OF SMITHTOWN et al., Defendants. |
The Smithtown Water District, one of the defendants in this action, moves to dismiss the complaint because of the failure of the plaintiff Mulligan to serve a notice of claim (General Municipal Law, §§ 50--e, 50--i). Mulligan moves to dismiss the affirmative defense which is based on that same failure.
Quite simply, the issue is whether the Water District falls within the scope of the sections cited above requiring service of a notice of claim as a condition precedent to suit.
An action against a 'town * * * fire district or school district for personal injury' nmust be preceded by the filing of a notice of claim (General Municipal Law, § 50--i). An action against 'a public corporation, as defined in the general corporation law, or any officer, appointee or employee thereof' requiring service of a notice of claim must follow the provisions of section 50--e of the General Municipal Law.
A public corporation takes in municipal, district and public benefit corporations (General Corporation Law, § 3(1)). However, the notice of claim procedure does not automatically apply to all public corporations, but rather only to those where such notice 'is required by law as a condition precedent to the commencement of an action' founded upon tort (General Municipal Law, § 50--e(1)). As indicated, such conditional tort actions do not include water districts as among the affected governmental units (General Municipal Law, § 50--i). In view of the facts that a 1963 amendment (L.1963, c. 660) to the last cited section added both fire districts and school districts only it is difficult to reconcile the absence of water districts as nevertheless included so as to mandate a notice of claim.
It appears then that a water district is not covered directly by section 50--i of the General Municipal Law. This would qualify the reference to public corporations in section 50--e(1) of the General Municipal Law, and the provisions of section 67 of the Town Law. Such precedent as exists on this point is essentially to the same effect (Jayne v. East Hills Water District, 6 Misc.2d...
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Laverne v. Corning
...obligation to serve notice but merely prescribes the manner in which notice, if required, shall be given. Harrigan v. Town of Smithtown, 54 Misc.2d 793, 283 N.Y.S.2d 424 (Sup.Ct.1967). This is also clear from the plain language of subdivision 1 of section 50-e which, in pertinent part provi......
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...in negligence against a water district (Martin v. Town of Esopus, 57 Misc.2d 487, 293 N.Y.S.2d 571, Cooke, J.; Harrigan v. Town of Smithtown, 54 Misc.2d 793, 283 N.Y.S.2d 424). Section 50-i provides that no action shall be prosecuted against "a city, county, town, village, fire district or ......
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